Second Song About People Who Need an Appeals Lawyer

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Last week’s song was about a guy moments away from the ultimate penalty. This week’s song is about a man with some interesting multi-jurisdictional issues whose central crime is “borrowing” a car. But he also awaits trial in California, it appears. No appeal here, necessarily, but perhaps it might be good to work out some concurrent time in Bakersfield and maybe a sentence modification or parole packet in Tennessee.

 

The real crime is that not enough people appreciate John Hiatt as a songwriter and as a singer.

Enjoy the weekend.

21 Judges Disciplined by Georgia’s Star Chamber, the JQC

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Robin McDonald’s article poses the question of why the Georgia’s Judicial Qualifications Commission has zapped so many judges this year. The simple answer is that they deserved it. But, read a little more, and the story is pretty disturbing.  While the commission has taken out some judges who had it coming, I can’t say that its Star Chamber structure is exactly a good American idea. It’s also a little disappointing that it takes a Georgia judge actually getting indicted or acting like a character on Mad Men to get him removed, where plain old rudeness, unfairness, and reprehensible conduct on the bench has been ignored.

Put another way, it seems like it matters more to the JQC what a judge does in chambers with his zipper down than his conduct on the bench with his robe on and his zipper (presumably) up.

 

Take Caldwell

Seems Caldwell had a penchant for dirty texting and crude Georgia game tailgating behavior. And there was so much more. So, it appears that someone from the Star Chamber payed him a visit and he scrawled out a letter to the governor resigning his position.

If you think that was bad, you should have seen him in court. He was rude to defense attorneys, had a tendency to swivel his chair around and let you know he wasn’t listening when you spoke, didn’t rule on objections (other than to say “okay” or “I note your objection”). He once told me “if you want to argue, I guess I can’t stop you.”). His court was not a place you looked forward to going because you weren’t going to be treated professionally, particulalry if you weren’t the State. He would yell at attorneys appearing before him. He’d make it a point to embarrass you if he could.

Had I complained to JQC, they would have thrown the Complaint in the trash. It’s what happens off the bench that counts.

 

Enter The Star Chamber

JQC Chair, Benjamin Easterlin said that “I would not necessarily reach the conclusion that we have a bunch of bad judges out there based on the recent flurry,” and neither is it “a matter of us ratcheting up any investigative efforts.”

But I bet the numbers have always been high. We also have a governor in office who’s not a big fan of the judiciary who has gotten the opportunity to appoint a bunch of judges. Those things, I am sure Mr. Easterlin would explain, are coincidental.

Of course, we’re never really going to know what’s going on with JQC. Since 2008, only six judges have ever been publicly charged. It’s long-standing practice is to squeeze the judge to get a resignation, or in Easterlin’s parlance, to “give the judge an opportunity to resign.”

When asked about whether the public had the right to be informed about the Commission’s actions, Mr. Easterlin said that such things are just gossipy: “I’m not sure what the public benefits from knowing that somebody did something bad.”

They are serious about the smoke-filled room thing. If you complain to the JQC and tell anybody about your complaint, you can be held in contempt for talking about it. Gerald Weber, former director of the ACLU in Georgia, sued the JQC on behalf of a jury foreman who had complained about a judge who fell asleep during a trial. The JQC fought that suit vigorously.

The other problem with squeezing judgees into retirement like that is that it presumes that the JQC is right and deprives the public of knowledge of misdonduct and parties who might have been harmed of their right to know.

I hate it, even if it got some people who deserved it.

CLE Opportunities for Criminal Appeals and Habeas Lawyers in Georgia

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There are some great CLEs coming up in the next few weeks and months for lawyers who do trial, appellate, or habeas practice. They range from the National to the local, but all of them will have something to offer.

  • NACDL’s Free Seminar on Padilla v. Kentucky. The Seminar is Titled “Padilla in Practice: Your Duty to Advise Clients of Immigration Consequences.” The seminar will be streamed live, and the first 40 people to sign up can attend at NACDL’s headquarters in Washington, D.C. If you are a criminal defense attorney the seminar will apprise you of your duties when representing clients who are not U.S. citizens. As an appellate or habeas attorney, this seminar will help you spot possible claims in the post-conviction setting. Best of all, it is absolutely free. Sure the other two seminars have bars and this one doesn’t. But you can always drink in your office, Mad Men style.
  • GACDL’s Fall Seminar. I have not missed one of these in almost ten years. Chatting with old friends and meeting new ones around the big fireplace at Brasstown Valley Resort in North Georgia is worth the price of admission alone. Added to that, distinguished lawyer, Bubba Head has set up a fantastic panel of speakers. Check it out. Sign up. If you aren’t a member of GACDL, join right now (PDF).
  • The Henry County, Georgia, Bar Association Fall Seminar. I will be speaking on preserving a record for appeal, and Professor Paul Milich will speak on Georgia Evidence. Information on that event will be posted soon. The event will be held at Reynolds Plantation Ritz Carlton. There will be plenty of time to hang out in their pool and watch beautiful Lake Oconee .

Managing Motions for Mistrial in Georgia to Preserve Them for Appeal

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So, I just got finished reading a transcript on a case I am appealing. Halfway through the trial, a witness for the State said something highly improper. Counsel moved for a mistrial. These moments in the reading of a transcript are a little like watching a really close college football game, because I am pulling for some magic words that preserved the record for appeal. So, I flip the page, and the lawyer explains why the testimony was improper and why a mistrial is necessary. Good stuff.

Cue the drama and suspense music. The judge dismisses the jury. As soon as the jury is out of the room, there’s a little more argument. The Court tells the State and the witness not to say it anymore. The Court makes the prosecutor warn all the other witnesses not to say it. The objection is sustained.

Then, the jury is asked back in, and the trial continues. No ruling on the motion. No renewal after corrective action. Nothing but a good appeal down the tubes. Mistrial issuesin a transcript are often the litigation equivalent of a Gilligan’s Island rescue. They almost preserve the issue for appeal, but they don’t quite make it.

So, since my theme this week is preserving the record for appeal, let me say a few things about managing mistrial motions in Georgia.

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Kemp Investigating Qualifications of Georgia Court of Appeals Candidate

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According to a post by Alyson Palmer at ATLAW Blog, the Secretary of State’s Office is picking up where Atlanta Lawyer Justin Chaney left off. A month ago, Mr. Chaney challenged Adrienne Hunter-Strothers’s candidacy arguing that she had not been a member of the State Bar of Georgia long enough to be a candidate for the Georgia Court of Appeals. Ms. Hunter-Strothers was admitted to the New York Bar in 2002 and to the Georgia Bar in 2005.

At issue is the language in Article VI, Section VII, Paragraph II (a) of the Georgia Constitution that provides, “[a]ppellate … judges shall have been admitted to practice law for seven years.”

Mr. Chaney’s challenge was initially dismissed because it was filed 100 minutes too late, but the Secretary of State is picking up the ball to contemplate running with it.

The controversy turns on an argument that “admitted to practice of law for seven years” includes, by implication, a requirement that the candidate be admitted to practice law in Georgia for seven years.

Stories like this are always interesting because one wonders what the back story is.

The other interesting part of this story is that there does not appear to be an issue. “Admitted to practice of law,” means what it says. From what I see on TV, there are lawyers outside Georgia. The candidate was admitted to practice law over seven years ago. The Constitution does not say admitted to practice law “in Georgia.” She appears to be otherwise qualified.

Unless the Secretary of State adds some language into the Constitution with a Sharpie, this one should be filed in the same category as the Obama is not a U.S. Citizen challenge that people keep forwarding to my email.

Sheepish or Sarcastic: It all Looks the Same on the Record

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Picking up on yesterday’s theme, I have been thinking more about why lawyers don’t make good records on appeal. So, I’m going to take a stab at it, and this stab is applicable to criminal trials only. As far as I know, civil practitioners have their own reasons for not preserving a good record for appeal.

I think that part of the blame goes back to the way criminal defense associations do their CLEs. There’s a steady undercurrent that I’ve noticed in the seminars I’ve been attending that encourages lawyers to engage trial judges in a war. I think for a young lawyer just getting started in the biz, it can make things more intimidating. There’s this sometimes subtle and sometimes not subtle at all theme that real lawyers should find a way to go to jail for their client. I’m not saying that the moment won’t arise where tough choices must be made and that those choices could equal incarceration. I just think that moment may be a once in a lifetime or so occurrence. Otherwise, there’s no need to go seeking it out.

But, you might ask, how do I preserve the record on appeal if I don’t get up in the judge’s face? If you are asking yourself this question, you’ve been listening to some radical criminal defense CLE speakers for too long.

Over time, I’ve noticed something about trial transcripts. I’ve talked to lawyers who tried the cases I’ve read, and they’ve asked me things like, “did you see where I showed that judge who was boss?” “Did you see where the judge screamed at me?” Often, the truthful answer is “no” and “no.” If you scream “objection, leading” at the top of your lungs, or if you whisper it gracefully and lovingly, it looks exactly like this on the page: “objection, leading.”

In fact, there are several other things that don’t make their way onto the page. The list includes mean looks, eye rolling, pointing, tears, and leaping up out of your chair.

At the end of the day, I think this saber-rattling stuff that speakers on record preservation shout is contributing to the problem of bad records. If preserving the record means engaging the judge in a shouting match, then better to just sit here.

Step back, take a deep breath, and reframe. Preserving an issue for appeal is pretty easy, and you can do it and sound like a yoga instructor while you do it. Listen for the objectionable stuff. Stand up. Smile. Put on your most soothing voice and say, “objection, your honor.” state your reasoning. Wait for the response. If the judge waves you off, rolls her eyes, or says “move along, counselor,” just smile again and ask, “I’m sorry, your honor, did you overrule my objection.” Wait for the answer. Then say, quite sheepishly, “may I have a continuing objection to this testimony on the same grounds already stated?”

Judges get it wrong sometimes, and it can be frustrating. And a fact of life for defense counsel is that you are going to lose most of your objections. The judge is not going to grant your mistrial motion. He won’t give your request to charge, particularly if the State is opposed to it.

When those moments come, channel your inner Columbo.

Ever notice that the umpire never changes his call, no matter how much the manager gets in his face, spits on him, or screams creative combinations of obscenities? Ever notice how many managers get thrown out of the game? Where does this analogy break down? The manager who’s thrown out of the game gets to hang out in the clubhouse, which is a pretty cush place.

Take the pressure off of yourself. You don’t need to go to jail. You just have to say a few words loudly enough for the court reporter to hear them.

How to Make the Transcript More Fun to Read

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The average trial transcript handled by the average criminal trial attorney is a sad sight to behold. All of my client’s hopes turn on what is said in this document and often, I am sad to say, on what is not said in this document. There is one word that makes the difference between dead lifeless prose and a story that leaps from the page. One word — objection. I am not sure why more lawyers don’t say it, but it doesn’t get said enough.

If criminal trials were a baseball game, then baseball would look much differently that it currently looks. Imagine the umpires paying close attention but not saying a word. Pitch by pitch, hit by hit, not a word spoken as the teams play the game. However, the moment that a player asks for a ruling, the umpire says “strike” or “safe” or “out.” Imagine if, for once, when the manager emerges from the dugout, the umpire could make a definitive ruling, but he won’t do anything at all until then. And, if you say nothing the whole game and you lose, it’s your fault because you never asked any of the umpires to make a call.

I read many transcripts where my team loses and nobody said a word.

In Georgia, “all evidence is admitted as a matter of course unless a valid ground of objection is timely interposed.” Moore v. State.

So, it is important to describe the words that, when found on a transcript, are music to an appellate lawyer’s ears:

  • Objection followed by reasoning. For instance, “objection, the question calls for hearsay,” or “objection “the evidence is irrelevant, it’s hearsay, and it is unduly prejudicial.” Keep in mind that you don’t need to scream it. You don’t need to smirk or anger anybody. In fact, a sheepish frighteneed quivering voice objection looks exactly like a loud, sarcastic, smirking objection in the Courier New font on the prited page of a transcript. If you don’t state the reason for the objection, then you haven’t objected really. Hawkins v. State.
  • A Ruling. The judge ideally will say “overruled,” “sustained,” “I’ll allow it,” “I won’t allow it.” Those words are distinct from “move along,” “I note your objection,” “okay,” “ummm huhhh,” or silence. If your judge doesn’t rule, you can ask, again, with a quivering voice, sheepishly, with a single tear running down the side of your flushed red face, whether the objection is sustained or overruled. Remember, it all looks the same on the transcipt.
  • Continuing. If something happens once, it’s likely to happen five more times, particulalry if it really hurts your client. So, you can object every time or you can ask that your objection be continuing.

Three things make the difference between a dull lifeless depressing transcript and a transcript that is the equivalent of something written by Tolstoy: (1) objection plus reasoning; (2) a ruling; (3) and an objection that continues.

Think about it and make your next transcript a great written work.

Weekend Music About People who Need a Criminal Appellate Lawyer

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Music is replete with songs about people who had some bad stuff happen to them at their trial and who need an appellate lawyer. So, I am kicking off a weekly series featuring songs about people who need a good criminal appeals or habeas lawyer. To kick things off, let’s listen to Steve Earle from 1991, singing “Billy Austin.” Billy needed a good appellate lawyer, and now it’s a little late. As you listen, see what issues you can spot. There’s a pretty good ineffective assistance of counsel claim in here, and it also appears that some mitigation got left on the table. He called the police on himself — acceptance of responsibility. But maybe it just makes him sound more cold.

We find out pretty quickly that Billy wasn’t tried in Georgia. One, he got a “court appointed lawyer,” which we don’t really fund for death penalty defendants in Georgia. Also, his “trial was over quickly.” Defendants in death cases in Georgia don’t really get a speedy trial. They languish in the county jail.

 

 

 

What to Do if You’re Not the First Lawyer on the Case

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Another lawyer contacted me about a case she is working on. She wasn’t the trial counsel. She wasn’t the lawyer on the motion for new trial. In fact, one lawyer handled the trial. A second lawyer handled the motion for new trial. She was hired after the motion for new trial was denied but just before the appeal was docketed in the Georgia Court of Appeals. She wanted to raise ineffective assistance of trial counsel on appeal How could she do that?

She had found a case that seemed to speak to this situation. In Ruiz v. State (2009), appellate counsel took over in just the situation described above. Appellate counsel entered an appearance after the appeal was docketed for appeal. Motion for new trial counsel entered an appearance after the trial was over but chose not to raise a claim of ineffective assistance of counsel. Counsel requested a remand so that he could raise ineffective assistance of motions counsel.

The Court held that ineffective assistance of trial counsel was waived because new counsel failed to raise ineffective assistance of counsel at his earliest practicable opportunity, which would have been the motion for new trial stage. However, the Court went ahead and reached the merits of the ineffective assistance of motions counsel issue on the record before it without making a remand. Though, from the language of the opinion, had the issue not been apparent from the record, a remand for a hearing on ineffective assistance of motions counsel would have been authorized.

So, my advice to the lawyer who called me was to do one of three things:

 

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Georgia Judicial News: Judges Gone Wild Edition

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I don’t want to bury the lead. So, here it is. There must be enough error out there in Georgia to win a slew of appeals. Georgia judges must be messing up on hearsay, the Fourth Amendment, and jury charges. All those things are hard. Many of them, so far this year, are messing up on more basic things such as — do keep your hands to yourself, do show up for work, don’t make Facebook friends with a woman you think is hot and offer advice on a case pending in your court, don’t go parking with a public defender assigned to your court, and don’t — well, don’t do any of that Johnnie Caldwell stuff. Seriously, if Georgia judges haven’t nailed down those basics, then it’s very likely that some good objections at trial will probably produce some reversible error at trial

 

A Recap of Today’s News

It’s a good thing no apartments caught on fire in Atlanta today, because tonight’s 6 o’clock news was all about judges. First, Judge Kenneth O. Nix, who had been a judge since 1982, abruptly resigned today in the wake of what he called a “misunderstanding.” A female ADA assigned to his courtroom and a female investigator posed for pictures in his lap and apparently became upset after he, in his own words “flicked them both on the fanny.”  The incident landed the Georgia judiciary back in the national news. The local broadcast media also covered the story. Judge Nix was apparently known to dress as Santa and have people sit in his lap.

Meanwhile, the local broadcast media covered the abrupt resignation of Fulton State Court Judge Albert Thompson after a local media outlet examined records that showed he only entered the courthouse 55 weekdays aout of a possible 147 weekdays that the courthouse was open. In a 30-week period, he spent about 43 minutes per week in the courthouse.

 

More Judges in the News

The governor announced his replacement for Paschal English and Johnnie Calwell. Speaking of Santa, Judge Caldwell apparently had a Santa complex also. Their replacements were announced today — Fayette County State Court Judge Fletcher Sams and Former GPDSC head Mack Crawford. Mr. Crawford’s nomination had moments of controversy when Stephen Bright, of the Southern Center for Human Rights wrote a letter to the Judicial Nominating Commission opposing him as judge (PDF). Of course, the abrupt resignation of Caldwell and English was news when it happened.  The announcement of their replacements was news today.

 

And There was the Facebook Judge

Remember Judge Ernest Woods a/k/a Bucky Woods who got the ball rolling back in January, 2010? Seems so long ago and so many judicial scandals back. He was the first Georgia judge to get zapped this year based upon some Facebook contact with a local hair stylist who had a case pending before him. Katheryn Hayes Tucker covered the story on Law.com way back then.

 

And My Point Is

The point of this story is not that Georgia has suddenly become a giant Scott Turow novel — though that point could be made and defended. My point is not that there is some sort of conspiracy afoot to put more Sonny Perdue appointees on the bench — though that does sound interesting.  The point is that if Georgia judges are messing up on the basics, then you’ll likely get some mistakes on the record if you just object more. Who knows, after all, what Santa might bring.

 

And the Box Score

Number of Chief Judges who Abruptly Resigned: 4

Number of Times Santa Claus was Referenced: 2

Number of Times “Some people claim[ed] there’s a woman to blame:”5

Number of Resignations letters referencing need to spend time with family 5

ADDRESS

199 W Jefferson St.
Madison, GA 30650

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EMAIL

tori@scottkeylaw.com